Woodbury v Miles
[2006] NSWWCCPD 55
•27 March 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Woodbury v Miles [2006] NSWWCCPD 55
APPELLANT: Evan Woodbury
RESPONDENTS: Peter and Annie Miles
INSURER:Employers’ Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER: WCC 11302-04
DATE OF REGISTRAR’S DECISION: 23 December 2004
DATE OF APPEAL DECISION: 27 March 2006
SUBJECT MATTER OF DECISION: Appeal against Registrar’s assessment of costs; date at which law is to be applied; maximum totals allowed in the Compensation Costs Table; travelling and accommodation expenses; Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners, Lawyers
Respondent: Moray & Agnew, Solicitors
ORDERS MADE ON APPEAL: The Registrar’s determination of Mr Woodbury’s claim for costs in this matter, dated 23 December 2004, is amended in accordance with these reasons.
The Respondents, Peter and Annie Miles, are to pay the Appellant, Mr Woodbury, $550.00 inclusive of GST in respect of his costs in this appeal.
BACKGROUND TO THE APPEAL
On 27 January 2005, Evan Woodbury filed an appeal in respect of a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 23 December 2004. The Respondents to the appeal are Peter and Annie Miles. The Respondents’ workers compensation insurer, which acted on behalf of the Respondents in the Commission proceedings, is Employers’ Mutual Indemnity (Workers Compensation) Ltd (‘EMI’).
The dispute to which the costs determination relates was determined by consent on 16 July 2003 with the Commission issuing a Certificate of Determination requiring (1) a Notice to Discontinue to be filed within 14 days and (2) the “Respondent to pay the Applicant’s costs as agreed or assessed”.
The parties having failed to come to an agreement as to costs, on 23 July 2004, Mr Woodbury applied to the Registrar for an assessment of costs. The Registrar delegated the assessment to a Commission Arbitrator who made the determination, dated 23 December 2003 in error and, in fact, made on 23 December 2004. The Certificate of Determination stated:
“1. Pursuant to an Order dated 17 July 2003 [sic - it was dated 16 July 2003] the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2. The Applicant’s costs of the proceedings are assessed at $13,046.81.
3. The Applicant’s costs of the assessment are not allowed.
4. The Respondent is to pay the amount of $13,046.81 to the Applicant if those costs have not already been paid.”
In his ‘Statement of Reasons for Decision’, the Arbitrator noted that there had been extensive negotiations between the parties in the course of which “varying and differing views” had been expressed at various times in the correspondence. He noted the Respondents’ submission that the previous correspondence between the parties was without prejudice to a formal assessment by the Commission. The Arbitrator therefore dealt with each of the identified costs items and disbursements in turn and made a finding in respect of each. He concluded that Mr Woodbury was entitled to professional costs of $5,520.00 plus $552.00 GST, and disbursements of $6,340.74 plus $634.07 GST, a total of $13,046.81 including GST.
The Arbitrator found that the Respondents had been successful in most of the objections they had taken and, accordingly, under those circumstances, Mr Woodbury was not entitled to costs of the assessment.
Mr Woodbury’s solicitors’ submissions dated 27 January 2005 identified five professional costs items and/or disbursements in dispute: (1) their professional costs in respect of obtaining and reviewing medical reports pursuant to Item 2.04 of the Compensation Costs Table (‘the Table’) in Schedule 6 of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’); (2) their professional costs under Items 4.08, 4.09 and 4.12 of the Table; (3) solicitor’s travelling expenses; (4) barrister’s expenses; and (5) medical reports.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties on the appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
DISCUSSION
The relevant legislation concerning appeals to the Commission against an assessment of costs, set out in the 1998 Act and the 2003 Regulation, has recently been discussed by Deputy President Fleming in Berger v Moree Plains Shire Council [2005] NSW WCC PD 152. I note, in particular, that clause 119(1) of the 2003 Regulation limits the grounds on which an appeal may be made against the decision of the Registrar on an assessment of costs “to a matter of law” arising in the proceedings to determine the costs application.
Clause 84 of the 2003 Regulation fixes the maximum costs recoverable by legal practitioners and agents to those set out in Schedule 6, except where otherwise provided in Part 19. Schedule 6 sets out the maximum costs recoverable in workers compensation matters by reference to the Table at the end of the Schedule. The Table identifies particular activities or events with an item number. It is these item numbers that are referred to below.
(1) Professional costs under Item 2.04 of the Table
Mr Woodbury’s solicitors submit there is no maximum total applicable for “Obtaining and reviewing medical reports”, the type of activity/event identified in Item 2.04, because this is not shown in Mills Workers Compensation New South Wales (‘Mills’) at page 109056. EMI’s solicitors submit that “[a]t the time these items were incurred, ie prior to 28 February 2003, the maximum sum allowable was $300”.
The 2003 Regulation commenced on 1 September 2003. The Explanatory Note for the Regulation states that the object of the Regulation was “to replace, without any major changes in substance and as a consolidated Regulation”, the provisions of various other Regulations. Included amongst the provisions repealed was the Workers Compensation (General) Regulation 1995 (‘the 1995 Regulation’). As a result of an amendment to the 1995 Regulation made by the Workers Compensation (General) Amendment (Costs) Regulation 2001, which commenced on 1 January 2002, Schedule 6 was inserted into the 1995 Regulation, including a Compensation Costs Table similar to that in the 2003 Regulation, setting out the maximum allowable total amounts for different types of activity/event. In respect of Item 2.04 of the Table, the column 4 “Maximum total for type of activity/event” was set at $300. As a result of a further amendment to the 1995 Regulation made by the Workers Compensation (General) Amendment (Costs in Compensation Matters) Regulation 2003, the column 4 maximum total amount was increased from $300 to $600 with effect from 28 February 2003.
The dispute to which the costs determination in this matter relates was determined by consent on 16 July 2003 after a conciliation on 10 July 2003. However, Mr Woodbury’s application to the Registrar for an assessment of costs was not made until 23 July 2004. The Registrar’s costs determination, which is the subject of this appeal, was made on 23 December 2004. An important question is what is the applicable law? Is it (1) the law in effect at the time the costs for the relevant medical reports were incurred in late 2002 and early 2003, as appears to be suggested by EMI’s solicitors, (2) the law in effect at the time the Commission issued the Certificate of Determination on 16 July 2003, or (3) the law in effect at the time the applicant applied to the Registrar for an assessment of costs?
In my view, the applicable law is that in effect at the time the Commission issued the Certificate of Determination, including the costs order, on 16 July 2003. I have come to this conclusion after a review of the Table in Schedule 6 of the 2003 Regulation. The various parts of the Table are structured in terms of stages in the progress of a claim for compensation through to its resolution. In particular, I note that the Part 2A heading is “Certain events or activities on behalf of claimant until dispute referred or order sought”, and that this Part includes costs for various activities and events from the time the legal practitioner obtains instructions from the client to the time of agreeing terms of settlement with the insurer. Part 4 of the Table, headed “Referral of dispute to determination of the dispute”, applies where settlement is not reached between the parties and the dispute is referred to the Commission for determination by a party lodging an ‘Application to Resolve a Dispute’. It covers costs for various activities/events from the time of application to the Commission to the time of reporting to the client on the outcome of a conference or arbitration. In my view, it is the end point of the resolution process that is the critical in terms of the applicable law for the purpose of assessing costs.
However, it is not only the structuring of the Table, but also the practicalities of the situation that should be considered. Focusing on Item 2.04, in most matters of this kind, the parties will obtain and review a number of medical reports over a period of time prior to the resolution of the claim. It is impractical to have to identify the relevant law for application in respect of each report, and the question then arises whether one should take the date on which the report is obtained or the date on which it is reviewed as the determinative date for the purposes of deciding the applicable law. It is more practical to identify one date for the purpose of deciding the applicable law for a costs assessment and, in my view, the obvious date is the date on which the Commission issues the Certificate of Determination by which recognition is afforded to the resolution of the dispute. In this case, that date is 16 July 2003, which is the date that should be taken for determining the applicable law for the purpose of assessing the costs payable on the costs assessment.
The applicable law at the time of the issue of the Certificate of Determination on 16 July 2003 was the 1995 Regulation. Even if I am wrong in this and the applicable law is that which was in effect at the time the application was made to the Registrar for assessment of costs on 23 July 2004, this would make no difference to the outcome because the relevant provisions of the 1995 and 2003 Regulations in effect on those dates, in both cases Item 2.04 of the Compensation Costs Table at the end of Schedule 6, in respect of “Obtaining and reviewing medical reports”, provide the same maximum amounts in column 3 for individual activity/event and in column 4 for type of activity/event. The column 4 maximum in both cases is $600. The definitive statement of the law is, of course, the legislation itself rather than the recital appearing in Mills or any similar source.
Thus, in my view, the Arbitrator made an error of law by applying a column 4 maximum of $300, that was in effect prior to 28 February 2003. Mr Woodbury’s solicitors’ total claim for obtaining and reviewing medical reports under item 2.04 is $1,325.00. The maximum total allowable for this item is $600 (rather than the maximum total $300 allowed by the Arbitrator), which is the amount that must be substituted in the Registrar’s determination.
(2) Professional costs under Items 4.08, 4.09 and 4.12 of the Table
Mr Woodbury’s solicitors submit that the Arbitrator “left out” their professional costs claimed in respect of the first and second conferences detailed against Items 4.08, 4.09 and 4.12 of the Table. EMI’s solicitors did not dispute those claims. The Arbitrator has either made a typographical error by failing to include those items or has made an error of law by unfairly or unlawfully excluding them.
EMI’s solicitors contend the items were not “left out” as alleged. Items 4.08, 4.09 and 4.12 were allowed at $1,000, $500 and $570 respectively in accordance with the maximum sum allowed for these items under the 2003 Regulation.
In his Statement of Reasons, the Arbitrator commented that there was no dispute in respect of Items 4.08. 4.09 and 4.12, and allowed the amounts of $1,000, $500 and $570 respectively. The activity or event covered by Item 4.08 is “Preparing for a conference (including providing advice to client)”. The maximum total for the type of activity or event is $500. The activity or event covered by Item 4.09 is “Attending and participating in a conference with an Arbitrator (other than an arbitration hearing or where Item 4.10 applies)”. (Item 4.10 is not relevant in this matter.) The maximum total for the type of activity or event is $1,000. The activity or event covered by Item 4.12 is “Reporting to the client on the outcome of a conference or arbitration ...”. The maximum total for the type of activity or event is $190.
In their Schedule of Professional Costs and Disbursements dated 28 July 2003, Mr Woodbury’s solicitors claimed $500 under Item 4.08, $250 under Item 4.09 and $190 under Item 4.12 for each of the first and second conferences and for the conciliation, a total of $1,500 for Item 4.08, $750 for Item 4.09 and $570 for Item 4.12. EMI’s solicitors did not dispute these claims (Submissions to the Commission with letter dated 17 August 2004, at paragraph 7). The Arbitrator awarded Mr Woodbury’s solicitors $1,000 in respect of Item 4.08, $500 in respect of Item 4.09, and $570 in respect of Item 4.12. There is no explanation in the Arbitrator’s Statement of Reasons as to why he appears to have made an award for two activities/events under Items 4.08 and 4.09, and three activities/events under Item 4.12.
As mentioned above, in my view the applicable law for the purposes of this assessment is the 1995 Regulation in effect as at 16 July 2003. However, since the relevant provisions of Table 6 of the 1995 Regulation are almost identical to those of Table 6 in the 2003 Regulation, references to Table 6 in the discussion that follows are also applicable to the 2003 Regulation in effect at 23 July 2004. In Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCC PD 28, Deputy President Fleming discussed the application of column 4 of the Table in Schedule 6. Column 4 bears the heading “Maximum total for type of activity/event”. With reference to clause 1(2) of Schedule 6, the heading for column 4, and the NSW Court of Appeal decision in Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 (‘Fuentes’), the Deputy President said at paragraph 38:
“the monetary values set out in Column 4 of the Table, are the maximum total for an event type in any particular claim, regardless of the number of individual activities that may take place under the event heading.”
Thus, in respect of Items 4.08 and 4.09, the legal practitioner may not be allowed more than the column 4 maximum regardless of the number activities/events of that type. The column 4 maximum for Item 4.08 is $500 and for 4.09 is $1,000. As Deputy President Fleming recognised in McManus v Gosford City Council [2004] NSW WCC PD 61, there is, however, an exception in respect of Item 4.12 where, following Fuentes, the column 4 maximum of $190 may be allowed in respect of each conference or conciliation/arbitration.
In the case of Mr Woodbury’s solicitors’ claim, the Arbitrator should have awarded $500 in respect of Item 4.08 (the maximum, despite a total of $1,500 being claimed), $750 for Item 4.09 ($250 claimed for each of the two teleconferences and the conciliation – a total below the maximum of $1,000), and $570 for Item 4.12 (two teleconferences and the conciliation at a maximum of $190 each). The Arbitrator made an error of law by awarding $1,000 in respect of Item 4.08 (exceeding the maximum) and $500 in respect of Item 4.09 (no explanation given), errors which must be corrected.
(3) Solicitor’s travelling expenses
Mr Woodbury’s solicitors submit that the safest route to travel between Young and Tamworth involves a return trip of 1450 kms less 50 kms, amounting to 1400 kms. They submit that for the Arbitrator to rely on what a computer states is the most direct route is inequitable and constitutes an error of law. EMI’s solicitors submit the Arbitrator correctly calculated the number of kilometres travelled.
Clause 4(1)(c) of Schedule 6 of the 2003 Regulation (and the equivalent provision in the 1995 Regulation – clause 3A(1)(c)) states that “no costs are payable for any distance travelled in excess of the shortest practicable route (depending on the mode of travel used)”. The Arbitrator relied on the distance calculator available at the website to calculate the number of kilometres between Young and Tamworth for use in determining applicable travelling expenses. The distance calculated was 610.8 less 50 kms (the first 50 kms is deducted pursuant to Item 10.02 of the Table), amounting to 560.8 kms per trip, which at $0.59 per km gives a figure of $330.87, or $661.74 for the return trip. I am not persuaded that the Arbitrator acted inequitably or made any error by so doing.
Mr Woodbury’s solicitors also contend the Arbitrator failed to allow the sum of $120.00 for the solicitor’s accommodation even though this was not disputed by EMI. Item 10.03 of the Table allows a maximum of $120 in respect of costs incurred for each night’s accommodation where the place of attendance is more than 50 kms from the practitioner’s place of business. It appears the Arbitrator may have overlooked this Item as no mention is made of it in his Statement of Reasons. Such evidence as there is supports Mr Woodbury’s solicitors’ claim with respect to Item 10.03, which should therefore be allowed.
(4) Barrister’s expenses
Mr Woodbury’s solicitors submit that an applicant is entitled to be represented by both a solicitor and a barrister at the conciliation/arbitration stage in Commission proceedings. They contend it is in the interests of the applicant for the solicitor to be present when negotiations are taking place, being the person with whom the applicant has been in communication; the presence of the barrister is required as an expert in oral submissions if the matter moves into the arbitration phase. They submit the exercise of the Arbitrator’s discretion to disallow the barrister’s travelling expenses “was manifestly unreasonable and therefore amounted to an error of law”.
EMI’s solicitors submit that Items 10.02 and 10.03 of the Table only entitle a party to claim expenses in respect of one legal representative. If that were not the case, barristers would also be entitled to charge professional costs under the Regulation. EMI’s solicitors point to section 356 of the 1998 Act which states that a party is entitled to be represented by a “legal practitioner or agent” – the term being used in the singular.
I note Mr Woodbury’s solicitors concede that the applicant’s professional legal costs that may be claimed under the 2003 Regulation “relate to both the Solicitor’s and Barrister’s costs”. An examination of the Table makes clear that specific amounts may be allowed for particular activities/events subject to a maximum total for each type of activity/event. There is no specific mention of counsel’s fees except in relation to referrals of questions of law to the President of the Commission where counsel attends proceedings before the President (Item 6.03), and in relation to appeals to a Presidential Member where counsel attends proceedings before the Member (Item 8.04). In both cases, the maximum hourly amount allowed for counsel is $300, subject to a maximum total for that activity of $600.
Travel costs are addressed in Item 10.02 and accommodation costs are addressed in Item 10.03 of the Table. In the case of travel costs, such costs can only be claimed for the purpose of attending at proceedings before the Commission or for the purpose of specified activities or events. In the case of accommodation costs, such costs can only be claimed for costs incurred when attending at proceedings before the Commission or for the purpose of specified activities or events. In both cases, the specified activities or events include proceedings before the President (Item 6.03) or before a Presidential Member (Item 8.04) in respect of which a claim can be made for counsel attending, as mentioned above.
This indicates that travel and accommodation costs for counsel can only be claimed in respect of an activity/event to which reference is made in one of the earlier Parts of the Table. No specific reference is made to counsel attending and participating in an arbitration hearing. So while an applicant might recover professional legal costs at the allowable amount for counsel attending and participating in an arbitration hearing (Item 4.11), this would not be specifically referable to counsel rather than a solicitor attending, and claiming such professional costs in respect of counsel fees would appear to exclude any separate claim for the costs associated with the solicitor attending. In other words, the allowable amount precludes a claim being made for more than one legal practitioner.
In my view, it is reasonable to deduce from this that if professional costs are only payable in respect of one legal practitioner attending an arbitration hearing, so also travelling and accommodation costs would be limited to one person, there being no separate provision made for counsel’s fees in relation to an arbitration hearing. I therefore reject Mr Woodbury’s solicitors’ submission that the Arbitrator made an error of law when he exercised his discretion not to allow the barrister’s travelling and accommodation expenses.
(5) Medical reports
Under this heading, Mr Woodbury’s solicitors state “the Applicant wishes to advise the Respondent” that certain disbursements for medical reports will form part of the disbursements in matter number WCC 2842-04. No error of law by the Arbitrator is raised in relation to the current proceedings and I therefore reject the appeal in relation to these disbursements.
Conclusion
In summary, the Registrar’s determination contains errors of law that must be corrected by allowing Mr Woodbury’s claim for:
(1) the sum of $600 (rather than $300) under Item 2.04 of the Table;
(2) the sum of $500 (rather than $1,000) under Item 4.08 and $750 (rather than $500) under Item 4.09 of the Table; and
(3) the sum of $120.00 (rather than $Nil) for his solicitor’s accommodation under Item 10.03 of the Table.
The effect of this is that the Respondents are liable for an additional $50 plus GST in respect of costs plus $120 in respect of disbursements.
DECISION
The Registrar’s determination of Mr Woodbury’s claim for costs in this matter, dated 23 December 2004, is amended in accordance with these reasons.
COSTS
Mr Woodbury has been partially successful in this appeal. In my view, it is reasonable to order that the Respondents pay Mr Woodbury’s costs in this appeal in the sum of $550.00 inclusive of GST, representing the equivalent of approximately two hours work. The appropriate order, therefore is: “The Respondents, Peter and Annie Miles, are to pay the Appellant, Mr Woodbury $550.00 inclusive of GST in respect of his costs in this appeal.”
Robin Handley
Acting Deputy President
27 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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